Smt. Manjula vs Nagaraju
2021 Latest Caselaw 5735 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF DECEMBER 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

              MFA No.2595 OF 2016(MV)

BETWEEN:

SMT. MANJULA
W/O CHOWDAPPA
AGED ABOUT 35 YEARS
R/AT THARNAHALLI VILLAGE
KARAMANGALA POST
BANGARPET TALUK
ALSO RESIDING AT NO.26
4TH CROSS,MANJUNATHA LAYOUT
R.T.NAGAR,BANGALORE-78.

                                         ...APPELLANT
(BY SRI.VENKAT REDDY C M., ADV.)

AND

1.    NAGARAJU
      BEGLI HOSAHALLI, VILLAGE
      AND POST, KOLAR TALUK-563101.

2.    NATIONAL INSURANCE CO LTD
      DIVISIONAL OFFICE-V
      NO.72, UNITY BUILDING
      3RD FLOOR, P.KALINGA RAO
      (MISSION)ROAD, BANGALORE-01
      R/BY ITS MANAGER.
                                      ...RESPONDENTS
                            2




(BY SRI.D MANJUNATH, ADV. FOR R2:
    NOTICE TO R1 IS D/W V/O DATED: 24.11.2017)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:11.12.2015 PASSED
IN MVC NO.394/2014 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE & CJM & MACT, KOLAR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.


     THIS MFA COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimant being

aggrieved by the judgment dated 11.12.2015 passed

by the Motor Accident Claims Tribunal, Kolar in MVC

No.394/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 25.03.2011 at about 10.30

A.M., the claimant along with her relative on

Venugopal were going to the marriage at Kolar and

when they reached Beglibenejenahalli kere, at that

time, their Hero Honda bike bearing registration

No.KA-07-R-8684 which was driven by the rider rashly

and negligently had a skid. As a result of the aforesaid

accident, the claimant fell down from the bike and

sustained grievous injuries and was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that she spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent riding of the offending vehicle by

its rider.

4. On service of notice, the respondent Nos.1

and 2 have appeared through counsel and only

respondent No.2 has filed written statement in which

the averments made in the petition were denied. It

was pleaded that the petition itself is false and

frivolous in the eye of law. It was further pleaded that

the accident was due to the rash and negligent riding

of the vehicle by its rider. The rider of the offending

vehicle did not have valid driving licence as on the

date of the accident. The liability is subject to terms

and conditions of the policy. The age, avocation and

income of the claimant and the medical expenses are

denied. It was further pleaded that the quantum of

compensation claimed by the claimant is exorbitant.

Hence, he sought for dismissal of the petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant herself was

examined as PW-1 and Dr.P.V.Manohar was examined

as PW-2 and got exhibited documents namely Ex.P.1

to Ex.P.51. On behalf of the respondents, one witness

was examined as RW-1 and got exhibited documents

namely Ex.R.1 to Ex.R.2(a). The Claims Tribunal, by

the impugned judgment, inter alia, held that the

accident took place on account of rash and negligent

riding of the offending vehicle by its rider, as a result

of which, the claimant sustained injuries. The Tribunal

further held that the claimant is entitled to a

compensation of Rs.2,04,000/- along with interest at

the rate of 6% p.a. and directed the Insurance

Company to deposit the compensation amount along

with interest. Being aggrieved, this appeal has been

filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was doing agricultural work and milk vending and was

earning Rs.15,000/- per month, but the Tribunal has

taken the notional income as merely as Rs.5,000/- per

month.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered 36% to right

limb disability and 12% to whole body. But the

Tribunal has erred in taking the whole body disability

at only 10%. He further deposed that due to the

accident, she has suffered grievous injuries, she has

undergone surgery and she may be required

Rs.20,000/- to Rs.30,000/- for future medical

expenses for removal of implants. But the Tribunal

has not granted any compensation for 'future medical

expenses'.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. She was treated as

inpatient for a period of 5 days. Even after discharge

from the hospital, she was not in a position to

discharge her regular work. She has suffered lot of

pain during treatment. Considering the same, the

compensation granted by the Tribunal under the

heads of 'loss of amenities', 'pain and suffering' and

other heads are on the lower side. Hence, he sought

for enhancement of compensation.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, even though the claimant claims that he

was earning Rs.15,000/- per month, she has not

produced any documents to establish her income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered 36% to right

limb disability and 12% to whole body. The Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 10%.

Thirdly, due to the accident, the injuries suffered

by the claimant are minor in nature. She was treated

as inpatient only for a period of 5 days. Considering

the oral and documentary evidence and injuries

suffered by her, the Tribunal has granted just and

reasonable compensation and it does not call for

interference. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent riding of the offending

vehicle by its rider.

The claimant has not produced any documents

with regard to her income. Therefore, the notional

income has to be assessed as per the guidelines

issued by the Karnataka State Legal Services

Authority. Since the accident has taken place in the

year 2011, the notional income has to be taken at

Rs.6,500/- p.m.

As per wound certificate, the claimant has

sustained fracture of shaft of right hemerous, right

radial nerve injury (palsy). PW-2, the doctor has

stated in his evidence that the claimant has suffered

36% to right limb disability and 12% to whole body.

Therefore, taking into consideration the deposition of

the doctor, PW-2 and injuries mentioned in the wound

certificate, I am of the opinion that the whole body

disability can be taken at 12%. The claimant is aged

about 34 years at the time of the accident and

multiplier applicable to his age group is '16'. Thus,

the claimant is entitled for compensation of

Rs.1,49,760/- (Rs.6,500*12*16*12%) on account of

'loss of future income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 3 months. Therefore, the claimant is entitled for

compensation of Rs.19,500/- (Rs.6,500*3 months)

under the head 'loss of income during laid up period'.

The claimant has examined the doctor-PW-2,

who has stated in his testimony that the claimant

requires Rs.20,000/- to Rs.30,000/- towards 'future

medical expenses' i.e. for removal of implants.

Considering the same, I am of the opinion that the

claimant is entitled for Rs.20,000/- under the head of

'future medical expenses'.

The compensation awarded by the Tribunal

under other heads is just and reasonable.

10. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and suffering 25,000 25,000 Medical expenses 53,000 53,000 Food, nourishment, 5,000 5,000 conveyance and attendant charges Loss of income during 0 19,500 laid up period Loss of amenities 25,000 25,000 Loss of future income 96,000 1,49,760 Future medical expenses 0 20,000 Total 2,04,000 2,97,260

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.2,97,260/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the

date of realization, within a period of six weeks from

the date of receipt of copy of this judgment.

The Tribunal is directed to release the entire

compensation amount in favour of the clamant after

due verification.

Sd/-

JUDGE

HA/-